domestic violence & australian family law

Armstrong Legal specialise in Australian Family
Law and Criminal Law, offering a high level of
expertise to our clients in these chosen fields.

Several studies suggest that domestic violence in Australia is more wide-spread than
is commonly perceived. Historically, statistics on domestic violence in Australia were
calculated based on report of the incidents. It is now thought that only a small
proportion of Domestic Violence in Australia is actually reported.

It is a further misconception that there is little the Court or the Law can do to
protect victims of Australian Domestic Violence. Certainly, here in Sydney, that is
simply not the case. An entire chapter of the Crimes Act 1900 (NSW) is designed to
protect people who fear domestic violence and abuse. These people do not have to have
been victims of actual violence, only victims of acts causing them to fear for their
personal safety. The New South Wales Crimes Act provides that protection by providing
powers to the Local Courts, enabling them to make Apprehended Violence Orders, or AVOs
as they are commonly known, to protect people in need.

Apprehended Violence Orders (AVOs) are divided up into two categories:

In Australia, Domestic Violence Orders (DVO) are designed to protect people who live
in a domestic relationship with the alleged perpetrator and Personal Violence Orders
(PVO) are for all other categories of victims.

There is a range of orders commonly made by the Court in relation to Apprehended
Violence Order proceedings. Those common orders are as follows:

Statutory Domestic Violence
Orders

The orders below must be made in any circumstance where the court is making an
AVO

The defendant must not assault, molest, harass, threaten or otherwise interfere
with the protected person(s);

The defendant must not reside at the premises at which the protected person(s)
may from time to time reside or work, or other premises:(Home/premises);

Discretionary Domestic Violence Orders

An application for divorce is required to be completed, sworn by the applicant
before a divorce lawyer or justice of the peace and filed with the correct filing fee
paid. Some applicants may qualify for a waiver of the filing fee.

The orders below are discretionary orders.

The defendant must not enter the premises at which the protected person(s) may
from time to time reside or work, or other specified
premises:(Home/work/premises);

The defendant must not go within of the premises at which the protected
person(s) may from time to time reside or work, or other specified
premises:(Home/work/premises);

The defendant must not approach, contact or telephone the protected person(s)
except as agreed in writing or for the purpose permitted by an order or directions
under the Family Law Act 1975, as to counseling, conciliation, or mediation. The
defendant must not approach, contact or telephone the protected person(s) except
for the purpose of arranging or exercising access to children as agreed in writing
or as otherwise authorized by an order, or a registered parenting plan under the
Family Law Act 1975;

The defendant must not contact the protected person(s) by any means (including
through a third person) except through the defendant's legal representative;

The defendant must surrender all firearms and related licenses to Police;

The defendant must not approach the school or other premises at which the
protected person(s) may from time to time attend for the purposes f education
or child care or other specified premises:(school/child care/other);

The defendant must not approach the protected person(s) within twelve (12)
hours of consuming intoxicating liquor or drugs;

The defendant must not destroy or deliberately damage or interfere with the
property of the protected person(s);

That the court extend the operation of the orders to include the following
person(s) with whom the protected person has a domestic relationship;

Other orders.

AVO Orders by consent and without admission

Apprehended Violence Orders (AVOs) can be made by consent and without any
admission of wrongdoing. This can avoid the need for the matter to proceed to a
hearing before the court. This can be a cost effective way for parties to resolve a
dispute where fear of domestic violence or abuse is an issue. In other cases a full
hearing of evidence may be necessary to prove the need for an order to be made. The
making of a Apprehended Domestic Violence Order does not necessarily mean the end of
a relationship. In the majority of cases where courts make domestic violence orders,
the parties intend to continue living in the same house, but with some protection in
place.

At Armstrong Legal, we have experienced staff who have acted in literally
hundreds of domestic violence cases with Apprehended Violence Orders (AVO) before the
Court. If you feel you may need the protection of an AVO, or are being prosecuted by
someone seeking an AVO, please contact Peter Magee to discuss your matter.

The effects of domestic violence on the presumption of
shared parental responsibility

Under the Family Law Act 1975 there is a presumption that both parents
will be involved in making decisions about major long-term issues concerning their
children. Major long-term issues include things such as health, education and
religion.

In circumstances where there has been domestic violence, or family violence, as it
is often referred to, no such presumption applies. It is far more likely that a
parent who is seeking sole decision making power about major long-term issues is more
likely to be awarded that power by the Court in circumstances where there has been
family violence because the presumption of equal shared parental responsibility no
longer applies. Ultimately the Court must take a decision in relation parental
responsibility, which it considers to be consistent with the child's best
interests.

The effects of domestic violence on the requirement to
mediate

There is a requirement on parties to a family law dispute to engage in what is
described as pre-action procedures in an attempt to limit the issues in dispute. In
parenting cases this extends to a requirement to attempt to mediate the dispute using
the services of a qualified family dispute resolution practitioner. In circumstances
where there has been family violence the requirement to obtain a certificate from a
family dispute resolution practitioner before going to Court is waived. In other
words there is no requirement to mediate where you are able to satisfy the Court that
has been family violence.

The effects of domestic violence in property settlement
proceedings

Property settlements are determined by the Court by considering the contributions
and needs of each of the parties to the relationship (for a full explanation of the
process please refer to the article titled "THE FOUR STEP
PROCESS"

In cases involving domestic violence there is authority for the Court finding that
contributions made by a party while suffering domestic violence, particularly ongoing
and severe domestic violence, are to be considered more valuable because of the
arduous circumstances in which they were made. Accordingly, additional weight given
to those contributions if a factor taken into account by the Court in the overall
property settlement.

For further information on this topic please the case of Kennon v Kennon (1997) 22
FamLR1

Unintended consequences when reporting domestic
violence

We often see clients who have wanted to report domestic violence "for the record"
and who have made a report to the police without being aware of the consequences of
making such a report.

We are not suggesting that domestic violence should not be reported, but
are advising that there are consequences which flow beyond your control once you make
a report.

Once the police receive a report of domestic violence they are obliged, as a
matter of law, to take action on behalf of the person making the complaint unless
they do not believe the complaint is genuine. The action they are required to take is
to file an application with the Local Court for an Apprehended Violence Order
protecting the person making the complaint from the alleged perpetrator of the
violence. Police usually urn on the side of caution in bringing this application.
That means the application will usually be made even if police doubt the veracity of
the allegation.

Police can also bring an assault charge against the alleged perpetrator. The
person making the complaint is not the person who decides whether or not an assault
charge is to be brought. It is a matter for police to determine whether or not an
assault charge is to be brought. It is a matter for police to determine whether or
not such a charge should be laid as it their role to prosecute breaches of the law
when they come to their attention. Police may ask, as a courtesy, whether or not you
would like an assault charge to be brought, however they are not bound by your answer
and may proceed with bringing a charge even if you do not want them to do so or
refuse to assist after making the complaint.

We have seen many relationships breakdown irretrievably and much financial
hardship caused by virtue of people reporting domestic violence 'for the record' only
to find that it results in court proceedings, a possible criminal record for the
perpetrator, possible loss of employment if the perpetrator works in an industry
where a criminal conviction prevents them from continuing to work in that industry
and significant financial costs in defending any Apprehended Violence Order or
defending any charges which may be laid by police.

We repeat, we are not suggesting that domestic violence should not be
reported, however you should be aware of the unintended consequences which may flow
from the making of a report.

If you would like to discuss this further so that we can advise you on strategies to
assist you, please do not hesitate to raise this with us.

Time frames for disputed cases

If the matter is litigated and requires an interim hearing on any particular
issue, the current period of delay to obtain an interim hearing date is approximately
four to six weeks.

From the time of filing an application for the court to litigate your dispute, the
average delay by the court is currently 2-2½ years. Matters requiring urgent
attention can be expedited, but must be considered exceptional in
nature.

where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?